The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.
ROBERT P. PATTERSON, JR., U.S.D.J.
This is an action for damages alleging the wrongful payment of the proceeds of a Federal Employees Group Life insurance ("FEGLI") policy. Defendants United States and Metropolitan Life Insurance Company ("Met Life") move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the Amended Complaint for failure to state a claim upon which relief can be granted. Defendant Gladys Ponce Jacobs moves, both individually and as natural guardian of Herschel Jacobs, Jr., to dismiss the Amended Complaint on a number of grounds, including lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motions are granted.
Plaintiff Herschel Jacobs, Sr. ("Herschel Sr.") is a New York resident and the son of the insured, Abraham Jacobs. Defendants are: (1) the United States; (2) Met Life, whose Office of Federal Employees Group Life Insurance ("OFEGLI") administered the insured's policy; (3) Gladys Ponce Jacobs ("Gladys"), the widow of the insured and a resident of Puerto Rico; and (4) Herschel Jacobs, Jr. ("Herschel Jr."), also a resident of Puerto Rico and the minor son of Plaintiff and grandson of the insured.
The Amended Complaint alleges that the insured was an employee of the United States Postal Service and was insured under a life insurance policy administered by OFEGLI. In 1972, the insured married Gladys. That same year, he named Gladys and Herschel Sr. as beneficiaries under his FEGLI policy. The insured died in May, 1988.
Plaintiff alleges that in 1988 Gladys filed a claim under the FEGLI policy rightfully claiming entitlement to one half of the proceeds of the FEGLI policy for herself and claiming entitlement wrongfully to the other half of the proceeds on behalf of Herschel Jr.
Herschel Jr. had been residing with her since 1980. On September 23, 1988 and October 28, 1988, OFEGLI paid a total of $ 89,635.58 to Gladys as guardian for Herschel Jr. Plaintiff alleges that he did not learn until April, 1991 that he was a designated beneficiary of one half of the proceeds of the FEGLI policy and that the payments to Gladys as guardian for Herschel Jr. had been wrongfully made.
The Amended Complaint alleges the following claims for relief: (1) against the United States and Met Life for "wrongly and improperly" paying one half of the proceeds of the insurance policy to Gladys; (2) against Gladys, individually and as guardian for Herschel Jr., for wrongful conversion; and (3) against Gladys individually and as guardian for Herschel Jr., for fraudulent misrepresentation.
I. MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM
"A complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). When passing on a motion to dismiss, the court must accept the allegations in the complaint as true and construe those allegations in favor of the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Cruz v. Beto, 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972). Although Plaintiff has submitted affidavits in opposition to the motions to dismiss, these affidavits must be disregarded since this is not a motion for summary judgement. See Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988).
A. The Claim Against the United States
In order to bring an action against the United States, a plaintiff must show that the United States has waived its sovereign immunity and consented to the type of action being brought against it. U.S. v. Mitchell, 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980).
The United States has given limited consent to suits under the FEGLI Act, 5 U.S.C. § 8700 et seq. That consent is set forth in 5 U.S.C. § 8715, which provides, "The district courts of the United States have original jurisdiction, concurrent with the United States Claims Court, of a civil action or claim against the United States founded on this chapter." However, the United States' role is limited to the negotiation and procuring of a policy of group life insurance for its employees. It acts as agent for its employees, not as insurer. Railsback v. United States, 181 F. Supp. 765, 766 (D. Neb. 1960). The United States is only ...